Citation Nr: 9916851
Decision Date: 04/07/99 Archive Date: 06/24/99
DOCKET NO. 95-24 204A DATE
On appeal from the Department of Veterans Affairs Regional Office
in St. Louis, Missouri
THE ISSUE
Entitlement to vocational rehabilitation training in accordance
with the provisions of Chapter 31, Title 38, United States Code.
(The issue of whether the veteran has basic eligibility for
educational assistance benefits under Chapter 30, Title 38, United
States Code, is addressed in a separate decision.)
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michelle E. Jensen, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals (BVA or
Board) on appeal from an October 1992 determination by the
Department of Veterans Affairs (VA) Vocational Rehabilitation and
Counseling (VR&C) division of the Regional Office (RO) in St.
Louis, Missouri, which denied the benefit sought on appeal. The
veteran, who had active service from June 1976 to June 1980 and
from April 1987 to September 1991, appealed that decision to the
BVA.
Initially, the Board notes that the veteran appeared and presented
testimony at a Central Office hearing before a Member of the Board
in September 1996 and at a hearing before the undersigned Member of
the Board sitting at the RO in Chicago, Illinois, in October 1998.
In addition, the Board notes that the Board remanded this case to
the RO in November 1996 and January 1998. The January 1998
decision/remand denied increased ratings for low back and right
wrist disabilities and, in addition to remanding the issue of
entitlement to vocational rehabilitation benefits, remanded the
issue of entitlement to an increased evaluation for bronchial
asthma. However, during the October 1998 hearing before the
undersigned Member of the Board, the veteran indicated that he did
not wish to pursue his appeal as to the issue of entitlement to an
evaluation in excess of 60 percent for bronchial asthma.
Accordingly, the Board will not review that issue on appeal. See 38
C.F.R. 20.204 (1998).
REMAND
The record indicates that the veteran currently is service
connected for asthma, rated as 60 percent disabling; mechanical low
back pain with a history of conversion reaction (competent), rated
as 20 percent disabling; residuals of scapholunate fusion of the
right wrist, rated as 10 percent disabling; and left inguinal
hernia repair, rated
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as noncompensably disabling. The veteran's combined disability
rating is 70 percent. In addition, the veteran has nonservice-
connected disabilities which include lymphocytosis, hearing loss,
hypertension, ear infections, and throat infections.
In July 1992, the veteran applied for vocational rehabilitation
benefits in order to attend law school. According to the veteran,
his disabilities, specifically his service-connected asthma and
back condition, precluded him from performing his former occupation
as a medical professional in a hospital. In October 1992, the VR&C
division of the RO denied the veteran's claim on the basis that the
veteran's "service-connected condition [did] not materially
contribute to an employment handicap which prevented [him] from
training for, finding, or keeping a job consistent with [his]
abilities, aptitudes, and interests."
The veteran perfected his appeal of this determination. However, in
the meantime, he enrolled in and, eventually, graduated from law
school. The Board notes that during the course of the veteran's
appeal the rating for his service-connected asthma was increased
from 10 percent to 60 percent disabling, effective September 2 1,
1991. An October 1997 Supplemental Statement of the Case took this
rating increase into consideration, but continued to find that the
veteran's "service- connected disabilities still did not prevent
him from training for[,] obtaining or keeping a job consistent with
his abilities , aptitudes, and interests."
A person is entitled to vocational rehabilitation under Chapter 31
if that person is a veteran with a service-connected disability
compensable at the rate of 20 percent or more and that person is
determined by the Secretary to be in need of rehabilitation because
of an employment handicap. 38 U.S.C.A. 3102 (West 1991 and Supp.
1998); 38 C.F.R. 21.40 (1998). An employment handicap is defined as
an impairment of the veteran's ability to prepare for, obtain, or
retain employment consistent with his/her abilities, aptitudes, and
interests. 38 U.S. C.A. 3101 (West 1991 and Supp. 1998); 38 C.F.R.
21.51(b),(e) (1998). Impairment is defined as restrictions on
employability caused by disabilities, negative attitude toward the
disabled, deficiencies in education and training, and other
pertinent factors. 38 C.F.R. 21.51(c) (1998).
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The Board notes that a recent change in the law reestablished the
requirement that a veteran's employment handicap must be as a
result of a service-connected disability in order for the veteran
to receive VA vocational rehabilitation benefits. "The Veterans'
Benefits Improvements Act of 1996" Pub. L. No. 104-275, 110 Stat.
3322 (Oct. 9, 1996). However, the effective date of this pertinent
amendment enacted by the passage of this Act only applies with
respect to claims of eligibility or entitlement to services and
assistance (including claims for extension of such services and
assistance) under Chapter 31 on or after the date of the enactment
of the Act, or October 9, 1996.
In 1995, prior to the enactment of Public Law 104-275, the United
States Court of Appeals for Veterans Claims (known as the United
States Court of Veterans Appeals prior to March 1, 1999;
hereinafter the "Court") found no statutory support for the VA's
regulations requiring a causal relationship between a veteran's
service- connected disability and the employment handicap. The
Board directs the RO's attention to this Court case which held that
certain regulatory provisions which require that a veteran's
service-connected disability "materially contribute" to the
veteran's employment handicap were in conflict with 38 U.S.C.A.
3102 (West 1991) and thus "unlawful." Davenport v. Brown, 7
Vet.App. 476 (1995).
In Davenport, the Court held that the requirement of 38 C.F.R.
21.51(c) that a veteran's service-connected disability must
"materially contribute to the veteran's employment handicap" is
inconsistent with 38 U.S.C.A. 3102 and, not authorized. The Court
stated further, that to the extent that 38 C.F.R.
21.51(c)(2),(e),(f)(1)(ii) and (f)(2), include the "materially
contribute" language and require a causal nexus between a veteran's
service-connected disability and the veteran's employment handicap,
those regulatory provisions are unlawful. Thus, pursuant to
Davenport, consideration must be given to all of a veteran's
disabilities, both service-connected and nonservice-connected, in
making a determination as to whether an employment handicap exists
in a given case since the Court found that the term "employment
handicap" is not limited by statute to impairment due to service-
connected disability. Accordingly, when considering whether the
veteran has an "employment handicap" for purposes of entitlement to
Chapter 31 benefits, the originating agency
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should disregard any regulatory language in 38 C.F.R. 21.51 (1998)
which requires that the veteran's service-connected disability
materially contribute to his impairment of employability. The
recent statutory changes are inapplicable to the instant appeal as
the claim was filed prior to October 1996, and thus, the mandates
of Davenport must be followed in adjudicating this appeal.
In addition, the Board notes that in the January 1998 remand, the
VR&C division of the RO specifically was requested to "review the
record, including the records and examination results that might
have been developed pursuant to this remand, and again consider
whether or not the attainment by the veteran of a vocational
rehabilitation goal in a program of vocational rehabilitation
training pursuant to Chapter 31, Title 38, United States Code, is
reasonably feasible." Although the Board at that time slightly
misconstrued the issue by framing it as whether the attainment of
a vocational goal was reasonably feasible, the Board notes that the
underlying request was for an additional review of the veteran's
entitlement to vocational rehabilitation benefits in light of all
of the evidence of record. The Board finds that an additional
review of the record was not performed and, therefore, this case
must be remanded for compliance with the initial request. See
Stegall v. West, 11 Vet. App. 268 (1998).
The Court has directed that when the Board addresses in its
decision a question that was not addressed by the RO, the Board
must examine the notice and opportunity to submit evidence or
argument on that question provided the veteran; if it is determined
that adequate notice and opportunity have not been accorded the
veteran, it must be considered whether the veteran has been
prejudiced thereby. Bernard v. Brown, 4 Vet.App. 3 84, 393 (1993).
The Board finds that under the circumstances of this appeal, such
requirements regarding notice and opportunity cannot be met without
additional action by the RO. Pursuant to Davenport, all of the
veteran's disabilities, service-connected and nonservice-connected,
must be evaluated in determining whether an employment handicap
exists in this case. In addition, the Board's January 1998 request
for an additional review by the VR&C division must be fulfilled.
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Finally, the Board notes that the veteran has not indicated that he
is pursuing additional vocational rehabilitation benefits other
than those already denied (law school attendance). He contends that
he should be reimbursed for expenses associated with law school.
Accordingly, the Board finds that only those service and
nonservice-connected disabilities of record prior to the veteran's
graduation from law school are relevant. In this regard, the Board
notes that during the veteran's October 1998 hearing before the
undersigned Member of the Board he noted a 1996 foot crush injury.
The Board finds that this recent injury has no bearing on whether
the veteran's service and nonservice-connected disabilities warrant
vocational rehabilitation benefits for law school attendance.
In view of the foregoing, and in order to fully and fairly
adjudicate the veteran's claim, the case is REMANDED to the RO for
the following action:
The VR&C division of the RO should undertake any necessary
development and determine whether the veteran has an employment
handicap for purposes of establishing entitlement to Chapter 31
benefits under 38 U.S.C.A. 3102 (West 1991 and Supp. 1998).
Such development should include any referral of the veteran's case
for medical review deemed necessary prior to counseling. VR&C
should also ensure that there is adequate medical evidence of
record to evaluate the nature and seventy of all of the veteran's
disabilities, both service and nonservice-connected, prior to his
graduation from law school, to include a request from the veteran
for all pertinent medical records, both VA and private. Any and all
indicated medical development deemed necessary should be
accomplished in order to determine the extent to which the
veteran's service and nonservice-connected disabilities of record
prior to his graduation from law school impaired the veteran's
ability to complete certain
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The case should be returned to the Board for further appellate review, if in
order. The purpose of this REMAND is to afford the veteran due process of law
and to obtain additional information. The Board intimates no opinion, either
factual or legal, as to the ultimate conclusion warranted in this case.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. 7252 (West 1991). only a decision of the Board of Veterans'
Appeals is appealable to the United States Court of Appeals for Veterans
Claims (known as the United States Court of Veterans Appeals prior to March
1, 1999). This remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your appeal. 38 C.F.R.
20.1 100(b) (1998).
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